Saturday, January 31, 2015

When the Bill of Rights — the first 10 amendments to the U.S. Constitution — were adopted in 1791, the Fourth Amendment was included to protected individuals from unlawful search and seizures.

The framers of the Constitution were outraged by the unfettered access British officials had to colonists’ homes and persons. The new nation wanted to insure that any unlawful intrusion by the government would be dealt with swiftly and consistently — a lofty goal, even for the high-minded men who helped draft this enduring document.

Remarkably, much of the modern era of search and seizure jurisprudence has gone to the dogs, literally. Little would the framers believe that individuals would have to be protected from overzealous police work performed by dogs, albeit government dogs, but dogs nonetheless.

The U.S. Supreme Court heard oral argument recently in Rodriguez v. United States. At issue was whether a police officer “unnecessarily prolonged” an otherwise legal traffic stop by calling for a K-9 officer to walk a drug-sniffing dog around the stopped vehicle.

This is not the first time the U.S. Supreme Court has taken up the issue of four legged police personnel.

In 1983 and 2005, the Supreme Court declared that dog sniffs conducted by law enforcement in public places did not run afoul of the Fourth Amendment — such conduct did not intrude upon a “reasonable expectation of privacy.”

In 2000, the court ruled that routine drug checkpoints employing dog sniffs without suspicion resulted in an unlawful search under the Fourth Amendment. More recently, the Court ruled that using a drug-sniffing dog on the front porch of a residence is a “search,” and subject to the protections of the Fourth Amendment.

The Rodriguez case involved a valid traffic stop which the officer prolonged for seven or eight minutes in order to conduct a dog sniff of Rodriguez’s car. The entire traffic stop lasted about 30 minutes, at which point the dog alerted to methamphetamine and Rodriguez was arrested.

The case was appealed following Rodriguez’s conviction. The Court of Appeals found there was no “reasonable suspicion” for the dog-sniff detention. As a result, another doggy-cop case made its way to the high court.

The “reasonable suspicion” standard came about as a result of the 1968 landmark U.S. Supreme Court decision in Terry v. Ohio. Prior to Terry, and dating back to the birth of the Constitution, a Government official — or police officers as we came to know them — needed probable cause to detain an individual for investigatory purposes.

The Terry decision extended the authority to detain based on suspicion less than probable cause. The Court expected that a police officer conducting a “Terry stop,” as they came to be known, would be able to articulate a reason why she thought the individual detained might be involved in some criminal conduct.

In Rodriguez, there was no articulable reason to detain Rodriguez and his vehicle. The citation had been written and the driver should have been free to go on his way. As Rory Little wrote on the SCOTUSblog “Here, in a case premised on no reasonable suspicion of narcotics, approving a prolonged detention of any length for a narcotics dog sniff seems, as Justice [Elena] Kagan suggested, “just not right” under Terry.”

Justice Sonia Sotomayor also had concerns. She suggested during the Rodriguez argument that the Supreme Court’s recent Fourth Amendment jurisprudence was “flying off the rails” due to its pro-police deference, reported Reason Magazine.

“[W]e can’t keep bending the Fourth Amendment to the resources of law enforcement. Particularly when this stop is not … incidental to the purpose of the stop. It’s purely to help the police get more criminals, yes. But then the Fourth Amendment becomes a useless piece of paper.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, “The Executioner’s Toll, 2010,” was released by McFarland Publishing. You can reach him at mattmangino.com and follow him on Twitter at @MatthewTMangino.
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According to a press release dated January 29, 2015 issued by the American Civil Liberties Union, the ACLU filed a federal lawsuit challenging debt collection practices that have resulted in the jailing of people simply because they are poor. The case was brought on behalf of Kevin Thompson, a black teenager in DeKalb County, Georgia, who was jailed because he could not afford to pay court fines and probation company fees stemming from a traffic ticket.
"Being poor is not a crime. Yet across the county, the freedom of too many people unfairly rests on their ability to pay traffic fines and fees they cannot afford," said Nusrat Choudhury, an attorney with the ACLU's Racial Justice Program. "We seek to dismantle this two-tiered system of justice that punishes the poorest among us, disproportionately people of color, more harshly than those with means."
The U.S. Supreme Court ruled more than 30 years ago that locking people up merely because they cannot afford to pay court fines is contrary to American values of fairness and equality embedded in the 14th Amendment to the U.S. Constitution. The court made clear that judges cannot jail someone for failure to pay without first considering their ability to pay, efforts to acquire money, and alternatives to incarceration.
No such consideration was given to Thompson, who was locked up for five days because he could not afford to pay $838 in fines and fees to the county and JCS – despite the fact that he tried his best to make payments. The lawsuit charges that Thompson's constitutional rights to an indigency hearing and to counsel were violated by DeKalb County, JCS, and the chief judge of the local court that sentenced him to jail.
The case, Thompson v. DeKalb County, was filed in U.S. District Court in Atlanta.
The complaint is at: https://www.aclu.org/criminal-law-reform-racial-justice/thompson-v-dekalb-county-aclu-complaint
The press statement is at: https://www.aclu.org/criminal-law-reform-racial-justice/aclu-challenges-debt-collection-practices-target-poor

Friday, January 30, 2015

The Texas based blog Grits for Breakfast had a interesting post recently. Texas' final death-in-custody total for 2014 reached a whopping 615 people by year's end, according to the master list (xls) maintained by the Texas Attorney General, including 410 people who died in custody of TDCJ and 205 people who in custody of local jails or officers in the field. By comparison, the state executed ten people in 2014.

In December, TDCJ spokesman Jason Clark sent Grits data regarding deaths in custody at TDCJ in recent years. Adding last year's total, here's the updated list for context:

Deaths in custody at TDCJ

2007 – 436

2008 – 469

2009 – 424

2010 – 382

2011 – 418

2012 – 463

2013 – 443

2014 – 410

That's an average of 430 prisoner deaths per year at TDCJ over the last eight years, with last year on the low end of the range. These deaths were never scheduled, thus never delayed, and for the most part no newspaper reporter ever told their stories. But they remain just as dead as the men and women killed in the execution chamber, their families grieve as ardently. Dead is dead, even if humans seem to suffer from a desire to make some deaths matter more than others. It's all the same to the deceased.
To read more CLICK HERE

Wednesday, January 28, 2015

The Supreme Court has ordered Oklahoma to postpone lethal injections executions using a controversial sedative until the court rules in a challenge involving the drug.

The court's order Wednesday came as little surprise after both the state and the lawyers for three inmates who faced execution between now and March requested the temporary halt. The justices agreed on Friday to take up the challenge to the use of the sedative midazolam, which has been used in problematic executions in Arizona, Ohio and Oklahoma.

The case will be argued in April and decided by late June.

Left open by the court's order is whether Oklahoma can carry out an execution that does not involve midazolam, reported The Huffington Post.

The 5th Execution of 2015
Twice-convicted murderer Warren Lee Hill was executed in Georgia on January 27, 2015, according to the Georgia Department of Corrections, reported CNN.

Despite pleas by human rights groups and legal representatives who have argued that Hill's intellectual disability should have made him ineligible for the death penalty, Hill died by injection at the prison in Jackson, Georgia.

His time of death was 7:55 p.m. ET, said spokeswoman Gwendolyn Hogan. Hill declined to make a final statement, but requested a final prayer, Hogan said.

Hill's attorney slammed the U.S. Supreme Court, which declined to step in and grant a stay of execution.

"Today, the court has unconscionably allowed a grotesque miscarriage of justice to occur in Georgia," said Brian Kammer, Hill's lawyer.

"The intellectual disability community, which has strongly supported Mr. Hill's case for many years, joined his legal team in the belief that the Supreme Court would step in and prevent Georgia's flagrant disregard of the Constitution on behalf of the rights of people with disabilities," said Kammer.

He described the execution as "an abomination."

Federal law -- stemming from a 2002 Virginia case that went to the U.S. Supreme Court -- says executing intellectually disabled individuals violates the Eighth Amendment's ban on cruel and unusual punishment. But the ruling also allows states to define intellectual disability. In Georgia, that means attorneys for death row inmates have to prove mental impairment "beyond a reasonable doubt."

"This is the strictest standard in any jurisdiction in the nation," Kammer said.

Tuesday, January 27, 2015

The U.S. Supreme Court agreed to hear a case challenging three upcoming executions in Oklahoma. The inmates contend that Oklahoma’s drug cocktail violates the eighth amendment’s ban on cruel and unusual punishments, reported The Economist.

As Adam Liptak reminds us in the New York Times, it takes only four justices to agree to hear a case but five to issue a stay of execution. So while the justices agreed to hear the Oklahoma challenge against capital punishment, the lead petitioner in the case, a convicted murderer named Charles Warner, was actuallyput to death on January 15th. He fell one vote short of having his execution date put off.

The case once known as Warner v Gross is now called Glossip v Gross, named for Richard Glossip, another Oklahoma prisoner and the new lead petitioner. Yet Mr Glossip is now scheduled to die this Thursday, which could make the late-April oral arguments in his case rather moot. As the inmates’ lawyer put it in a response to the court on Monday: If no stay is ordered, Petitioners will be executed before the Court has a chance to review the merits of their case. Petitioners’ brief on the merits is due on March 9—which is four days after the last of the three scheduled executions.

The three petitioners may die before the Supreme Court decides if they should live.

Monday, January 26, 2015

Kentucky state Senator Brandon Smith, arrested this month on a DUI charge, is making an effort to get the charge dismissed based on a 124-year-old law that says lawmakers are "privileged from arrest" during legislative sessions, according to Newsmax.
According to WKYT, the law provides “The members of the General Assembly shall, in all cases except treason, felony, breach or surety of the peace, be privileged from arrest during their attendance on the sessions of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House they shall not be questioned in any other place."

Smith was arrested Jan. 6, the first day of the legislative session.

Peter Voss, a political science professor, told Lex 18 News legislative immunity was created because of problems between the crown and parliament. “It's safer to leave the people's elective representative in office voting and representing them, than it is to make it easy to lock them up," Voss said.

Questions have arisen as to whether the law would apply in Smith’s case. Although he was in session during the day, he was arrested on his way home from a friend’s house that night.

"The people who wrote the Constitution in 1891 did not intend to give blanket immunity to all legislators for any acts committed during the legislative session," Assistant Franklin County Attorney David Garnett told Lex 18. “Nobody is above the law."

Sunday, January 25, 2015

According to the USA Today, during the past year, the U.S. Supreme Court has appeared increasingly wary of the death penalty, for a variety of reasons:
• In May, the justices blocked the execution of a Missouri murderer because his specific medical condition made it likely that he would suffer from a controversial lethal injection.
• Later that month, they ruled 5-4 that Florida must apply a margin of error to IQ tests, making it harder for states to execute those with borderline intellectual disabilities.
• In October, the court stopped the execution of yet another Missouri man over concerns that his lawyers were ineffective and had missed a deadline for an appeal. Last Monday, the justices sent his case back to Missouri for further consideration.
And, this past week the Court has agreed to again review lethal injection
To read more CLICK HERE

Saturday, January 24, 2015

In a case that could have broad implications for hundreds of death row inmates, the Supreme Court will consider whether a drug protocol used in recent lethal injections violates the Constitution's prohibition on cruel and unusual punishment, reported the USA Today.
The justices agreed Friday to consider a case originally brought by four death-row inmates in Oklahoma -- one of whom was put to death last week, after the court refused to block his execution with a combination of three drugs that has caused some prisoners to writhe in pain.
Because the court's four liberal justices dissented from the decision to let that execution go forward, it presumably was their votes in private conference Friday that will give the issue a full hearing in open court. Only four votes are needed from the nine-member court to accept a case. It will be heard in late April and decided by late June.
Lawyers for Charles Warner and three other convicts set for execution in Oklahoma over the next six weeks sought the Supreme Court's intervention after two lower federal courts refused their pleas. While the court's conservatives refused to stop Warner's execution, the request for a full court hearing had been held for further consideration.
The lawyers claim that the sedative midazolam, the first drug used in the three-drug protocol, is not approved by the Food and Drug Administration as a general anesthetic and is being used in state executions virtually on an experimental basis. They say Inmates may not be rendered unconscious and could suffer painfully as the other drugs in the protocol are administered.
That, they claim, was a factor in Oklahoma's botched execution last April of Clayton Lockett, who struggled, groaned and writhed in pain for 43 minutes before dying. A state investigation later blamed Lockett's ordeal on a failure by prison staff to realize that drugs had not been administered directly into his veins. The state has since changed its procedures and increased the dose of midazolam used.
"The time is right for the court to take a careful look at this important issue, particularly given the bungled executions that have occurred since states started using these novel and experimental drugs protocols," said Dale Baich, one of the lawyers representing the death-row inmates.
Warner's execution last Thursday was the first in Oklahoma since Lockett's. The execution lasted 18 minutes, during which Warner, 47, convicted in the murder and rape of an 11-month-old girl in 1997, said the injection "feels like acid" and "my body is on fire." Witnesses said they saw only slight twitching in Warner's neck for about seven minutes before he stopped breathing.
The prisoners' lawyers also blame the drug protocol for two other gruesome deaths -- the execution a year ago of Ohio's Dennis McGuire, who made snorting noises for 20 minutes before dying, and July's execution of Arizona's Joseph Wood, who appeared to gasp hundreds of times during a death that took nearly two hours.
However, Florida has had fewer issues with the same drug protocol. On the day Warner was executed, it used the same three-drug combination to execute Johnny Shane Kormondy, 42, who killed a man during a 1993 home invasion.
Lawyers for Oklahoma responded that there was no real evidence midazolam would not work as a general anesthetic. They noted that it had been used successfully in at least 10 previous executions.
"It is undisputed that Oklahoma's protocol, which is identical to Florida's protocol, has been used 10 times in executions without serious incident," the state argued in its brief. "Petitioners can only cite to executions that took place using different drug combinations, or the Oklahoma execution of offender Lockett, in which IV access was subsequently found to be insufficient and flawed."
The court's four liberal justices -- Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan -- voiced deep concern about the three-drug protocol in trying to block Warner's execution last week. They also dissented last September when the court rejected a stay application from a Missouri inmate executed with the same drug.
"The questions before us are especially important now, given states' increasing reliance on new and scientifically untested methods of execution," Sotomayor wrote. "Petitioners have committed horrific crimes and should be punished. But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death."
Then, tellingly, she added, "I hope that our failure to act today does not portend our unwillingness to consider these questions."
The number of executions in the USA peaked at 98 in 1999, then dropped to 35 by last year, according to the Death Penalty Information Center. Four prisoners have been executed so far this year.
Although the death penalty remains on the books in 36 states, a half dozen of them account for nearly all the recent executions in the United States: Texas, Florida, Oklahoma, Missouri, Arizona and Ohio. Texas and Missouri do not use midazolam.
The next three prisoners set for execution in Oklahoma are Richard Glossip, John Grant and Benjamin Cole. Now, presumably, their executions -- including one set for next Thursday -- will be blocked while the Supreme Court considers their case.
In recent years, states that regularly carry out executions have been scrambling to find the drugs needed to carry out the death penalty. The preferred first drug had been sodium thiopental, a fast-action barbiturate no longer in supply as drugmakers and pharmacies -- particularly in Europe, where the death penalty is widely opposed -- have cut off production. Some states, such as Texas and Missouri, use pentobarbital alone or in combination with other drugs.
States that substituted midazolam, a psychoactive drug used as an anti-seizure medication and for sedation, have run into the most problems. According to the Death Penalty Information Center, at least seven states rely on midazolam.
The justices ruled in 2008 that using three drugs in succession to kill an inmate does not violate the Constitution's ban on cruel and unusual punishment. The first drug would render the inmate unconscious, a second would paralyze him and a third would stop the heart. But at the time, the drug supply was more reliable.

Friday, January 23, 2015

The 4th Execution of 2015
A New Mexico man convicted for a drug-fueled triple murder in San Antonio in 1993 was executed on January 21, 2015, reported the Texas Tribune. Arnold Prieto was the first Texas inmate put to death under Gov. Greg Abbott, who was sworn into office the day before.Prieto, 41, was convicted and sentenced to death in the lethal stabbing deaths of three people: 72-year-old Rodolfo Rodriguez, his 62-year-old wife, Virginia, and their 90-year-old friend, Paula Moran. Prieto was arrested along with two co-defendants, the Rodriguezes' grandnephews, brothers Guadalupe and Jesse Hernandez. The brothers had convinced Prieto to travel from Carrollton to San Antonio to rob their great uncle, who ran a check-cashing business out of his home. Prieto told police that he and the Hernandez brothers spent the day using cocaine before committing the murders. The trio made off with $300 and some jewelry.
Jesse Hernandez, who was 16 at the time of the killings, was convicted of capital murder and sentenced to life in prison. The charges were dropped against his brother Guadalupe because of insufficient evidence.
With no appeals pending in the courts, Prieto was put to death shortly after 6 p.m. Asked if he had any final words, Prieto replied: "There are no endings, only beginnings. Love y'all. See you soon," according to the Associated Press.
Next week, two more death row inmates, Garcia White and Robert Ladd, are scheduled to be executed.
To read more CLICK HERE

Thursday, January 22, 2015

Matthew T. ManginoGateHouse Media
January 21, 2014
This week, the nation commemorated the life and legacy of Dr. Martin Luther King Jr. Leading black members of Congress chose to remember Dr. King at an event hosted by the Wellspring United Methodist Church in Ferguson, Missouri.
The church is just blocks from where protesters gathered after the grand jury declined to indict the police office responsible for 18-year-old Michael Brown’s death.
The congressmen attempted to connect the non-violent efforts of Dr. King during the civil rights movement nearly 50 years ago to the fight for criminal justice reform today.
“Ferguson is the new Selma,” said Congressman Andre Carson, D-Ind.
Congressional Black Caucus Chairman Rep. G.K. Butterfield, D-N.C., said the group planned to push for reform, such as expanded police use of body cameras and independent investigations of fatal police shootings.
According to The Associated Press, Butterfield called the prolonged protests over recent deaths — including Michael Brown, Eric Garner in New York City and 12-year-old Tamir Rice in Cleveland — a “turning point in race relations.” Garner died after being put in a chokehold by a police officer during an arrest for allegedly selling loose cigarettes; Rice was shot in a park while holding a pellet gun.
There is support for police body cameras. President Barack Obama has asked for $263 million in funding for police body cameras and training. The program would provide funding over three years to help pay for more than 50,000 cameras.
Independent investigations of fatal police shootings will not be so easy: There will be resistance. Recently, the Miami City Commission voted to have the Florida Department of Law Enforcement probe all Miami police related shootings.
Miami's police union president, Sgt. Javier Ortiz, blasted commissioners in a two-page letter: “Miami cops aren’t killing people,” Ortiz wrote. “Bad people in our community are killing our loved ones.”
In St. Paul, Minnesota, the NAACP is calling for an independent investigation of an officer-involved shooting. “The St. Paul NAACP said the man who was killed is a black man in his 20s. The group has called for an independent investigation possibly by someone from outside of Minnesota,” reported KSTP-TV.
Last year, Wisconsin passed a law that requires outside investigation when people die in police custody — the first of its kind in the nation. State Rep. Garey Bies, a former county sheriff's deputy, co-sponsored the bill. Bies said he was troubled by three recent police related deaths in his state.
“I just saw a strong need to have some openness and some credibility, to assure the public that police are there to protect and serve and be upfront and honest with them,” Bies told The Milwaukee Journal Sentinel. “I believe the majority of police are, but when these things come up, it leaves a real question in your mind of what took place.”
The new law requires a team of at least two investigators from an outside agency to lead reviews of in-custody deaths.
The law requires the investigators to release a report of all death related investigations throughout the state if criminal charges are not filed against the officers involved. Law enforcement officials must also inform the victims’ families of their options to pursue additional reviews through the U.S. attorney’s office or other state-level agencies.
New Jersey is considering legislation that would require independent investigation of officer-involved deaths. Under the proposed bill, deaths involving a local police officer must be investigated by at least two independent people who are employed by a county prosecutor's office in a county other than where the incident occurred.
The legislation was introduced last October, a day after NJ Advance Media published a five-month investigation into the 2008 death of Kenwin Garcia, of Newark, after a struggle with New Jersey State Police troopers on the side of an interstate.
There will be more legislation to come as lawmakers respond to the growing concern over officer-involved deaths.Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at mattmangino.com and follow him on Twitter at @MatthewTMangino.
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State prisons and local jails are overcrowded, reported the Washington Post. The problem is especially acute in 17 states where the prison population is now higher than the capacity of the facilities designed to hold them.
Those states, still recovering from a recession that decimated budgets, have to decide whether to build facilities with more beds, turn to private contractors, relax release policies — or simply stuff more prisoners into smaller spaces.
At the end of 2013, Illinois was housing 48,653 prisoners, according to data published by the Bureau of Justice Statistics. The state’s prison facilities are designed to hold just 32,075 prisoners, meaning the system is operating at 151 percent of capacity. North Dakota’s 1,571 prisoners live in space meant for 1,044 people, 150 percent of capacity.
Nebraska, Ohio, Delaware, Colorado, Iowa and Hawaii are all holding a prison population equal to more than 110 percent of capacity.
To read more CLICK HERE

Monday, January 19, 2015

President Barack Obama has ordered the creation of a new federal working group to recommend tighter standards on providing military-style equipment to local police departments, reported the New York Times.
The order was part of Mr. Obama’s response to racial unrest in Ferguson, Mo., that followed the fatal shooting of an unarmed black teenager by a white police officer, and the heavily militarized posture police used in the days afterward to confront riots and protests over the killing.
In an executive order, President Obama said the group would be jointly led by the secretary of defense, the attorney general and the secretary of homeland security. It is tasked with ensuring that law enforcement agencies that acquire the equipment — including firearms and tactical vehicles — are properly trained to use it, and that they comply with civil rights requirements.
To read more CLICK HERE

Sunday, January 18, 2015

Marking an important shift in federal law enforcement policy, U.S. Attorney General Eric Holder announced that the U.S. Department of Justice’s adoption program—which permits state law enforcement agencies to turn seized properties over to the federal government for forfeiture—will be suspended.

But the Justice Department policy does nothing to limit the widely used and sweeping power of the federal government, or joint federal and state task forces, to seize Americans’ property based on nothing but suspicion.

"This important change in policy will strengthen protections for property owners who stand to lose their cash, cars, and other property without being convicted of or even charged with a crime” said Scott Bullock, a senior attorney at the Institute for Justice, the nation’s leading legal advocate against civil forfeiture. “But it is essential that greater protections for property owners must follow at the federal level and in the states to ensure that Americans are no longer victimized by civil forfeiture.”

The announcement by Attorney General Holder follows a growing wave of criticism and outrage about the government’s forfeiture practices. Federal legislation that would sharply curtail the federal government’s civil forfeiture program, including adoption, was introduced last session and is expected to be introduced again soon.

Under civil forfeiture laws, law enforcement can take property suspected of involvement in criminal activity without convicting or charging the owner with a crime. At the federal level and in most states, agencies involved in the forfeiture, including prosecutors and police departments, can keep some or all of the proceeds for their own use.

“Civil forfeiture should not exist in a country that values the principles of private property rights and due process,” said Chip Mellor, IJ’s President and General Counsel. “Now is the time to enshrine today’s policy change into the law and to pass further reforms to ensure that no American loses their property without being convicted of a crime.”

Saturday, January 17, 2015

The 3rd Execution of 2015
Oklahoma executed Charles Fredrick Warner on January 15, 2015, reported The Associated Press. It was the state's first lethal injection since a botched one last spring, and it carried out the punishment with a three-drug method that Florida used for an execution earlier the same night.

Warner's execution for the 1997 killing of an 11-month-old girl in Oklahoma City lasted 18 minutes. Prison officials declared him dead at 7:28 p.m. CST 12 minutes after the Florida execution.

"Before I give my final statement, I'll tell you they poked me five times. It hurt. It feels like acid," Warner said before his execution began. He added, "I'm not a monster. I didn't do everything they said I did."

After the first drug, the sedative midazolam, was administered and a microphone inside the death chamber was turned off, Warner said, "My body is on fire." But he showed no obvious signs of distress.

Witnesses said they saw slight twitching in Warner's neck about three minutes after the lethal injection started. The twitching lasted about seven minutes until he stopped breathing.

Warner's attorney, Madeline Cohen, who witnessed the execution, said there was no way to know if Warner suffered because the second drug, a paralytic, would have prevented him from moving.

"Because Oklahoma injected Mr. Warner with a paralytic tonight, acting as a chemical veil, we will never know whether he experienced the intense pain of suffocation and burning that would result from injecting a conscious person with rocuronium bromide and potassium chloride," Cohen said in a statement.

"Justice was served tonight as the state executed Charles Warner for the heinous crime of raping and murdering an infant," Gov. Mary Fallin said.

It was the second time Oklahoma used midazolam as part of a three-drug method, which had been challenged by Warner and other death row inmates as presenting an unconstitutional risk of pain and suffering.

Warner, 47, was originally scheduled to be executed in April on the same night as Clayton Lockett, who began writhing on the gurney, moaning and trying to lift his head after he'd been declared unconscious.

A state investigation determined that a single intravenous line failed and that the drugs were administered locally instead of directly into Lockett's bloodstream. Oklahoma put its executions on hold for nine months after the problematic execution.

Friday, January 16, 2015

The 2nd Execution of 2015
Florida executed Johnny Shane Kormondy on January 15, 2015, reported the Pensacola News Journal. He was the ringleader of a 1993 home-invasion robbery that ended with the murder of a Pensacola banker and the repeated rape of the banker's wife.
Kormondy was pronounced dead at 7:16 p.m. at Florida State Prison, shortly after the lethal injection was administered. Kormondy was the 21st inmate executed under Gov. Rick Scott, tying him with former Gov. Jeb Bush for the most executions since the death penalty was reinstated in Florida in 1979. The executions under Bush occurred over his full two terms, while Scott has just begun his second term.
The execution was delayed by two hours after a last-minute appeals was filed by Kormondy's lawyers with the U.S. Supreme Court, which eventually denied it.
Kormondy was convicted of the July 1993 murder of Gary McAdams and the rape of McAdams' wife, Cecilia, who had just returned home from her high school reunion late in the evening. The couple was confronted just outside their home by Kormondy and two others, who forced their way inside. Kormondy and his accomplices repeatedly raped Cecilia McAdams, and shot Gary in the back of the head. The Associated Press doesn't usually identify the victims of sexual assault but Cecelia McAdams has spoken publicly about her rape and her husband's murder.
Department of Corrections spokesman McKinley Lewis said Kormondy met with a spiritual adviser and family members on Thursday. For his last meal, Kormondy had fried alligator tail, fried okra, fried shrimp, fried eggs, hash browns, vanilla ice cream and cream soda.
Florida employs a three-drug mixture to execute prisoners: midazolam hydrochloride, vecuronium bromide and potassium chloride. The drugs are given intravenously, and are designed to first induce unconsciousness, then paralysis and finally cardiac arrest.
Midazolam, a sedative used commonly in surgeries, has been part of the three-drug mixture since 2013. Sodium thiopental was used before that, but its U.S. manufacturer stopped making it and Europe banned its manufacturers from exporting it for executions.
To read more CLICK HERE

Thursday, January 15, 2015

New York City officials have agreed to a plan that would eliminate the use of solitary confinement for all inmates 21 and younger, a move that would place the long-troubled Rikers Island complex at the forefront of national jail reform efforts, reported the New York Times.

The policy change was a stark turnaround by the administration of Mayor Bill de Blasio, which recently eliminated the use of solitary confinement for 16- and 17-year-olds but, backed by the powerful correction officers union, had resisted curtailing the practice more broadly.

Even the most innovative jails in the country punish disruptive inmates over age 18 with solitary confinement, said Christine Herrman, director of the Segregation Reduction Project at the Vera Institute of Justice. “I’ve never heard of anything like that happening anywhere else,” she said, referring to the New York City plan. “It would definitely be an innovation.”

The Correction Department has faced repeated criticism over the past year after revelations of horrific brutality and neglect of inmates at Rikers, the country’s second-largest jail system. Preet Bharara, the United States attorney for the Southern District of New York, is suing the city over the treatment of adolescent inmates at the jail complex.

Wednesday, January 14, 2015

The 1st Execution of 2015Andrew Brannan a Vietnam veteran convicted of killing a sheriff's deputy during a traffic stop in 1998 was executed in Georgia on January 13, 2015.Brannan died by lethal injection at the Georgia Diagnostic and Classification Prison in Jackson at 8:33 p.m., according to The USA Today. Brannan was the first person executed in 2015.Less than an hour before his execution, the U.S. Supreme Court had denied a request for stay of execution for Brannan. Earlier on Tuesday, the Georgia Supreme Court also denied a request for a stay.Brannan's lawyers argued before the State Board of Pardons and Paroles on Monday that the 66-year-old combat veteran was suffering severe post-traumatic stress disorder and in the throes of an emotional flashback when he pulled a rifle from his pickup truck and exchanged gunshots with Lauren County Deputy Kyle Dinkheller 16 years ago.
The Georgia State Parole Board listened to both sides in the case on Monday.
The five members of the parole and pardons board had the authority to commute or lessen the sentence against Brannan. Attorneys for Brannan spent 3 1/2 hours laying out their case for clemency, asking that their client's sentence be commuted to life without parole instead of the death penalty.
In order to commute or reduce a sentence, three of the five board members must agree. Since 2002, the parole board has commuted five death sentences.
Dinkheller's murder after he stopped Brannan for speeding was captured on a video camera mounted on the officer's patrol car. In the 1998 dashcam, the veteran can be seen unloading his rifle at the deputy, shooting the husband and father nine times, killing him.
To read more CLICK HERE

Tuesday, January 13, 2015

Leaders of the House and Senate Judiciary committees have called on the Justice Department to end the sharing of civil seizure proceeds with local and state police, a change that with few exceptions would cut the flow of hundreds of million of dollars annually to departments in every state, reported The Washington Post.
In a letter to Attorney General Eric H. Holder Jr., the lawmakers said they think money from Justice’s Equitable Sharing Program, the federal government’s largest civil asset forfeiture initiative, may be encouraging heavy-handed tactics by local and state police agencies.
Equitable Sharing allows police who seize property under federal civil law to keep up to 80 percent of the proceeds, while Justice and other participating federal agencies can keep 20 percent or more. In 2012, the most recent year of complete data available to The Washington Post, seizures worth more than $1.5 billion in cash, cars and other property were processed through the program.
“We are concerned that these seizures might circumvent state forfeiture law restrictions, create improper incentives on the part of state and local law enforcement, and unnecessarily burden our federal authorities,” the letter said.
That effort follows a Washington Post investigation in September that found that nearly 62,000 cash seizures worth more than $2.5 billion have been made through Equitable Sharing since Sept. 11, 2001, without search warrants or indictments. The departments of Justice and Homeland Security received $800 million of that total, while thousands of local and state agencies kept the rest.
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Monday, January 12, 2015

Matthew T. ManginoThe Pennsylvania Law Weekly
January 12, 2015
In Pennsylvania, more than 400 inmates serving life without the possibility of parole for homicides committed as juveniles will get one more shot at the possibility of getting out of prison.
Last month, the U.S. Supreme Court agreed to hear arguments in Toca v. Louisiana, No. 14-6381. In 1984, George Toca was 17 when he accidently shot and killed a friend during an armed robbery. Toca was convicted of second-degree murder and automatically sentenced to life in prison without the possibility of parole, as required by Louisiana law.
In 2012, the U.S. Supreme Court ruled in Miller v. Alabama, 567 U.S.____ (2012), that mandatory life imprisonment without parole for juvenile murderers was unconstitutional. The Supreme Court said such mandatory life sentences for juvenile offenders violated the Eighth Amendment's ban against cruel and unusual punishment. The court did not say that life in prison for juveniles was excessive, only that mandatory life was unconstitutional. More importantly, the court did not say whether the decision was retroactive.
When Miller was decided, 28 states had mandatory life sentences for juveniles. Going forward a state could only impose a life sentence if the sentencing court considered a litany of factors set forth in the opinion. Justice Elena Kagan wrote in Miller that the constitution forbids "requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes."
Toca and juvenile lifers around the country likely thought the possibility of someday being released was now something more than a dream.
However, the high court's failure to address the issue of retroactivity has left appellate courts and state legislatures in disarray.
The Miller decision fell in line with two other Supreme Court decisions concerning harsh penalties imposed on juvenile offenders, both of which were applied retroactively.
In 2005, Roper v. Simmons, 543 U.S. 551 (2005), eliminated the juvenile death penalty. In 2010, Graham v. Florida, 560 U.S. 48 (2010), ruled that sentencing juvenile offenders to life without the possibility of parole was also unconstitutional, but only for crimes that did not involve killings.
The question in Toca is whether the Miller decision entitles Toca to a new sentencing hearing. The Louisiana Supreme Court said no, reasoning that retroactivity was not required because Miller "merely sets forth a new rule of criminal constitutional procedure."
Most courts have recognized Miller as a new substantive rule that, under the court's precedents, must be applied to those sentenced before the June 2012 decision.
Other courts, including Pennsylvania, called it a procedural rule, not available to those already sentenced. Those courts note that the Miller decision did not ban life imprisonment without parole but said such a sentence could not be mandatory. Judges must take other factors into account before imposing a life sentence upon a juvenile.
In urging the U.S. Supreme Court to hear the case, Toca's attorneys argued that the supreme courts of Illinois, Iowa, Massachusetts, Mississippi, Nebraska, New Hampshire and Texas have ruled in favor of retroactivity.
On the other hand, the brief continued, the supreme courts of Louisiana, Michigan, Minnesota and Pennsylvania have rejected retroactivity. Pennsylvania has more offenders serving life without parole for murders committed as juveniles than any other state.
The Pennsylvania Supreme Court decided against retroactivity in Commonwealth v. Cunningham, 38 EAP 2012. In 2002, Ian Cunningham, who was 17 at the time of the killing, was convicted of second-degree murder and robbery in Philadelphia. He is serving life without parole.
Cunningham's lawyers argued to the Pennsylvania Supreme Court in September 2012 that Miller should apply to juveniles already serving life terms.
Was the Miller decision a procedural change in the law or substantive change?
Attorneys for Cunningham argued that "once a new rule is applied to the defendant in the case announcing the rule, even-handed justice requires that it be applied retroactively to all who are similarly situated."
The Cunningham opinion, written by Justice Thomas G. Saylor, did not preclude life without parole for juveniles. Instead, it simply sets out a new sentencing procedure to determine if such a penalty is appropriate, the Pittsburgh Post-Gazette reported. Among the changes, a sentencing judge must consider a juvenile's age, level of maturity, family and home environment, the extent of participation in the crime, the impact of family and peer pressure and the possibility of rehabilitation before handing down punishment.
The Cunningham decision ruled that Miller was only procedural.
In a concurring opinion, then Chief Justice Ronald D. Castille took the U.S. Supreme Court to task for failing to address the issue of retroactivity in Miller.
Castille suggested that the Pennsylvania General Assembly should address the issue. The legislature acted quickly after Miller, enacting legislation permitting courts to impose a minimum of 35 years to life for offenders ages 15 to 17, and 25 to life for offenders 14 or younger. In cases of second-degree murder, courts will be required to impose mandatory minimum sentences of 30 years to life for 15- to 17-year-olds, and 20 years to life for those under 14.
"Presumably, the General Assembly has the power to revise the applicable statutory provisions related to parole, without affecting the underlying judicial judgments in these cases. Miller's concern was not with sentences of [life without parole] for juveniles per se, but rather with the absolute, mandatory unavailability of parole irrespective of individualized circumstances that the high court deemed relevant for juvenile offenders," Castille said.
According to the Sentencing Project, 15 of the 28 states affected have not passed compliance legislation. However, of the 13 including Pennsylvania that have passed new laws, 11 require young offenders to serve lengthy terms before parole review can be considered.
In June 2014, the U.S. Supreme Court let stand Pennsylvania's decision in Cunningham, and as recently as October the U.S. Supreme Court refused to hear a similar case out of Ohio. The about-face in Toca came as a surprise to many Supreme Court observers.
Toca's attorney, Emily Maw of the Innocence Project New Orleans, told the Washington Post the lesson of Miller is that "the harshest possible sentence should be the exception, while a sentence that provided a meaningful opportunity to obtain release would be the norm."
A decision is expected this summer. Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, "The Executioner's Toll, 2010," was released by McFarland & Co. Contact him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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Saturday, January 10, 2015

Indiana Senate Bill 136, authored by Sen. Lonnie Randolph, seeks to repeal the state's death penalty statute and reduce the punishments of those awaiting execution to life imprisonment without parole, reported the Indianapolis Star.
The death penalty in Indiana is allowed only in murder cases. The bill also would prohibit the court from sentencing a convicted murderer to life imprisonment without parole if that person is deemed mentally ill.
The Legislative Services Agency estimates that the bill, if it becomes law, would cost the state about $1 million to keep the current death row population imprisoned for life.
About a dozen inmates are awaiting execution in Indiana. Six people are awaiting death penalty trials in Indiana.
According to the Legislative Services Agency, the average cost of representing a defendant facing a death penalty is significantly more expensive than that of someone facing life imprisonment without parole. The agency estimates that the state would save about $166,400 per murder case if life imprisonment without parole becomes the most serious sentence a defendant could face.
Indiana has not had an execution since 2009. The last person to be executed was Matthew Wrinkles, who was convicted of killing his estranged wife, her brother and her brother's wife in 1994.
The state has executed about 150 prisoners, 20 of them in the past four decades.
Indiana is one of 32 states that have a death penalty statute. In recent years, New Mexico, Illinois, Connecticut and Maryland abolished theirs.
Capital punishment became law in Indiana in 1897. The U.S. Supreme Court overturned state death penalty laws in 1972. The statute was reinstated in Indiana five years later.
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Friday, January 9, 2015

The special prosecutor and grand jury investigating allegations that Pennsylvania Attorney General Kathleen G. Kane leaked secret information to a newspaper have found evidence of wrongdoing and recommended that she be criminally charged, according to the Philadelphia Inquirer.
Numerous people familiar with the decision said the panel concluded that Kane violated grand-jury secrecy rules by leaking investigative material in a bid to embarrass political enemies, sources said.
Some of those familiar with the grand jury presentment say it recommended charges that included perjury and contempt of court.
The statewide grand jury, sitting in Norristown, has turned over its findings to Montgomery County District Attorney Risa Vetri Ferman, who must decide whether to affirm its findings and arrest Kane, the state's top law enforcement official.To Read more CLICK HERE

Thursday, January 8, 2015

Matthew T. ManginoGateHouse Media
January 8, 2015
During the summer of 1984, I was about to enter my senior year at Westminster College in rural western Pennsylvania.
The region had long been a stronghold for labor-influenced liberalism. However, Ronald Reagan was elected president in 1981, and soon after, our congressman, Eugene Atkinson, switched from Democrat to Republican. The Democratic Party was a ship without a rudder.
Then, on July 22, 1984, New York Gov. Mario Cuomo gave an electrifying speech at the Democratic National Convention in San Francisco.
Cuomo’s speech that night 30 years ago inspired me and I’m sure many young people around the country. Four years later, I would attend the 1988 Democratic National in Atlanta, Georgia, as a delegate.
Gov. Cuomo was, like me, an Italian-American Roman Catholic. But he was more than that: He was a pious intellectual — a former athlete who became a tenacious campaigner.
I have watched his convention speech more times than I care to admit, and I have read it many more times. Although a successful lawyer and an accomplished politician, he was not afraid to talk about helping the less fortunate.
Unfortunately, the chasm between the haves and the have nots that Cuomo spoke about so passionately in 1984 has not changed much in the last 30 years.
Cuomo died last week, but liberalism died a long time ago. In fact, liberalism as a political label no longer exists. If you’re a left-leaning politician you’re not a liberal, you’re a progressive.
On that stuffy July evening in 1984, Cuomo told a hall full of dyed- in-the-wool Democrats that there was another part to President Reagan’s “Shining City on a Hill.”
The part “where some people can’t pay their mortgages and most young people can’t afford one, where students can’t afford the education they need and the middle-class parents watch their dream they hold for their children evaporate.”
Those concerns of 1984 are strikingly relevant today. The middle-class is shrinking; students are buried in debt; and America has yet to fully recover from a mortgage crisis.
Tragically, this is not a Democrat /Republican issue or a conservative/progressive issue — it is a leadership issue. The last 30 years have been split almost evenly between Democrat and Republican leaders.
Although Cuomo was often thought of as a presidential candidate, he never took that step. Cuomo was a bundle of contradictions. He was a devout Catholic but fought for a woman’s right to choose. He ardently opposed the death penalty, but noted he built more prison cells than any other New York governor in history.
The thing that Cuomo had that few politicians display today is humility. He had moments of self-doubt. He said after deciding not to pursue the presidency, “I do desperately want to believe in something better than I am.”
“If all there is is me in this society, then I've wasted an awful lot of time, because I'm not worth it,” columnist E.J. Dionne quoted Cuomo as saying.
I met Cuomo in Youngstown, Ohio, in the spring of 2003. He was not a physically imposing figure, but his personality was bigger than life. He was still optimistic and idealistic. He spoke with passion, and was generous with his time after the event.
His death came on the day his eldest son, Andrew Cuomo, delivered his inaugural address in Manhattan after being sworn in for his second term as governor of New York.
President Barack Obama said that Cuomo was “an unflinching voice for tolerance, inclusiveness, fairness, dignity and opportunity.” Former President Bill Clinton summed up the impact of Cuomo’s life simply, yet eloquently, “His life was a blessing.”Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, “The Executioner’s Toll, 2010,” was released by McFarland & Company. You can reach him at mattmangino.com and follow him on Twitter at @MatthewTMangino.
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Wednesday, January 7, 2015

Matthew T. ManginoThe Youngstown Vindicator
January 4, 2015
Nearly a year ago, Dennis McGuire’s execution in Ohio took an inordinate amount of time. A procedure that typically took 10 minutes lasted more than 25 minutes. During the prolonged execution McGuire gasped and snorted.
His family said that Ohio’s new lethal injection protocol amounted to cruel and unusual punishment. McGuire’s family filed a federal lawsuit, alleging that the drug maker that produced the medications illegally allowed the drugs to be used for an execution and should be prohibited from making them available for capital punishment.
There has not been an execution in Ohio since, although prior to McGuire’s execution, Ohio was second to only Texas in the number of executions carried out since 2010.
With an execution scheduled for Feb. 11, and federal Judge Gregory L. Frost’s moratorium ripe for rescission, another lawsuit has been filed in Ohio with an eye toward stopping executions. This lawsuit filed by four death-row inmates doesn’t challenge the inmates’ convictions; the morality of the death penalty; or whether lethal injection is cruel and unusual punishment.
Secrecy rules
The four death-row inmates are challenging the constitutionality of Ohio’s new execution secrecy rules.
The federal lawsuit claims the new law, which shields the identities of most participants in Ohio’s execution process, violates their rights to free speech and due process, reported The Plain Dealer of Cleveland.
Gov. John Kasich signed the bill into law in December. Supporters of the new law contend it is needed to protect individuals involved with Ohio executions from harassment and potential harm.
That reasoning seems to fly in the face of the U.S. Constitution. Prosecutors who pursue the death penalty are not shielded from identification for their protection. Trial judges and jurors are exposed to the public during trial. The appellate judges who make countless decisions about whether executions should proceed actually sign their names to their decisions.
Yet, the manufacturer of the execution drugs — companies who make a profit on the drugs — can remain anonymous. The identity of doctors and prison officials who participate in executions shall be sealed forever?
Secret identities
Other states have pursued secrecy to protect those involved in executions. In Florida, executioners’ identities are kept secret. Ohio’s response to an execution that had gone awry is a glimpse into what appears to be the beginning of the end for the death penalty in Ohio and across the country.
The problem is about more than secrecy — it’s about the slow undoing of the death penalty. There were only 35 executions carried out across the country in 2014. Only eight states carried out those executions, in fact three states — Texas, Missouri and Florida — were responsible for 28 of the 35 executions.
There are 32 states that have capital punishment on the books. Although governors in Oregon, Colorado and Washington have imposed moratoriums on executions. Ohio has Judge Frost’s moratorium. In seven other states with the death penalty, there has not been an execution carried out in at least 10 years.
Eight executions scheduled for December were postponed by court order. Three of those postponed executions were to take place in Pennsylvania. The Commonwealth of Pennsylvania has executed three people since 1977, and all three volunteered to be executed. Pennsylvania has not involuntarily executed a condemned inmate since 1962.
Declining numbers
The 35 executions carried out last year are the fewest in 20 years. Things don’t look much better for the death penalty in 2015. The first three out of four executions for 2015 have already been postponed. The fourth is scheduled for Pennsylvania, and there is little likelihood of that execution being carried out.Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

Tuesday, January 6, 2015

The Pennsylvania Supreme Court has ruled 5-1 that the requirement that all sex offenders who were juveniles at the time of their crimes must remain on the Megan's Law Registry for life is unconstitutional, reported Jurist.
The court upheld a 2013 decision by a York County judge that struck down portions of the Sexual Offenders Registration and Notification Act (SORNA). The court declared the law unconstitutional because it allowed no appeal and assumed that all juvenile sex offenders posed a high risk of committing crimes as adults, even though according to studies, barely one percent of them commit new crimes.
In addition to public contempt, being on the Megan's Law Registry required offenders to report quarterly to state police and report changes of address, job or personal appearance within three days.
To read more CLICK HERE

Monday, January 5, 2015

As Ohio’s inmate population once again approaches record levels, with no money available for bricks and mortar, prisons chief Gary Mohr is looking at something never used here before — emergency early release of prisoners, according to the Columbus Dispatch.
In his budget overview for 2015-16, Mohr said, the department will “request strengthened language on emergency release of inmates contained in Ohio Revised Code 2967.18.”
The changes Mohr will ask the General Assembly to make weren’t specified. JoEllen Smith, spokeswoman for the Department of Rehabilitation and Correction, emphasized that emergency release will be an option only if overcrowding persists and money is unavailable for additional prison beds.
The agency’s current two-year budget is about $3.2 billion. New biennial budget figures won’t be decided until much later this year.
As of Dec. 29, Ohio prisons held 50,641 inmates, 31 percent above design capacity and about 1,000 more than two years ago at this time.
The section of state law Mohr referenced, ORC 2967.18, specifies the chain of events for declaring an “overcrowding emergency,” resulting in the release of some nonviolent prisoners 30, 60 or 90 days early. Enacted in 1997, the early-release provision has never been used.
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Sunday, January 4, 2015

Watch my interview on WFMJ Weekend Today. I discussed the new child abuse law in Pennsylvania, the death penalty in Ohio and the Supreme Court's decision to again address juvenile life without parole. To see the interview CLICK HERE

Saturday, January 3, 2015

Oklahoma's lethal injection protocol is constitutional and the state can proceed with the scheduled executions of four death row inmates between January 15 and March 5, reported The Associated Press.
U.S. District Judge Stephen Friot denied a request for a preliminary injunction that was requested by a group of Oklahoma death row inmates. The prisoners argued the use of the sedative midazolam as the first drug in a three-drug combination the state administers risks subjecting them to unconstitutionally cruel and unusual punishment.
Medical experts called by attorneys for the death row inmates testified that midazolam won't properly anesthetize a person and render the individual unconscious for the second drug, which causes them to suffocate, and a third which would cause a burning pain before stopping the heart.
Dale Baich, one of the attorneys for the Oklahoma death row inmates, said in a statement they plan to appeal Friot's decision.
"As anesthesiologists and other medical experts have detailed, our primary concern is the use of midazolam, a drug that is inappropriate for use in executions because it does not relieve pain and does not maintain prisoners at an adequate level of anesthesia," Baich said. "And because Oklahoma plans to paralyze condemned prisoners after giving them midazolam, it is likely we often will not know if the prisoners were medically and constitutionally anesthetized or if they suffered."
The inmates sued after the April 29 execution of Clayton Lockett, who writhed on the gurney, mumbled and lifted his head during his 43-minute execution that the state tried to halt before it was over. Lockett's execution was the first in Oklahoma using midazolam, which also has been used in problematic executions in Ohio and Arizona.
Judge Friot said in his ruling from the bench that he placed "considerable reliance" on the ability of the execution team to have a backup IV line, to constantly monitor the IV lines, and to ensure that an inmate is unconscious before the second and third drugs are administered.
In addition to adopting a new execution protocol, Oklahoma has bought new medical equipment and ordered more training for the execution team. Prison officials say they're prepared for the upcoming executions.
To read more CLICK HERE

Friday, January 2, 2015

Matthew T. ManginoGateHouse Media
January 2, 2015
During the last two years, nearly a dozen U.S. courts have reversed criminal convictions because prosecutors ran amuck with the rules of court while making PowerPoint presentations to a jury.
Recently, the Marshall Project, a non-partisan criminal justice news service, reported that prosecutors across the country have violated rules of criminal procedure through the overzealous use of PowerPoint.
PowerPoint presentations consist of a number of individual pages or “slides” — reminiscent of an overhead projector with lots of bells and whistles — displayed through a screen projection generated by a computer.
Slides may contain text, graphics, photographs, sound and even movies. The presentation can be printed, displayed live on a computer, or navigated through by the presenter. Most often the computer slides are projected on to a screen for viewing by an audience.
Since Microsoft launched the slide show program 22 years ago, it has been installed on more than 1 billion computers with an estimated 350 PowerPoint presentations given each second around the world. PowerPoint users continue to prove that no field of human endeavor can defy its facility for reducing complexity and nuance to bullet points, reported Businessweek.
It was only logical that PowerPoint would seep into the courtroom. Even in cases where PowerPoint did not result in a court decision being overturned, appellate courts have taken note of the improper use of the software.
As the Marshall Project suggested, “prosecution by PowerPoint” must be reined in. “It’s the classic ‘A picture is worth a thousand words,’” Eric Broman, a Seattle attorney, told the Marshall Project. “Until the courts say where the boundaries are, prosecutors will continue to test the boundaries.”
Often the improper use of PowerPoint occurs during closing arguments when prosecutors are summing up the evidence of trial and making a final pitch to the jury to convince them the state has proven the defendant guilty beyond a reasonable doubt.
During closing arguments prosecutors have turned to “visual advocacy.” Computer-aided presentations have at times crossed the line. For instance, plastering the word “guilty” across a defendant’s photograph. One court noted that “guilty” is almost always written in red letters — the “color of blood.”
Recently, according to the Marshall Project, the Missouri Court of Appeals ruled in a case where the prosecution, in its closing argument, presented a slide showing the defendant in a booking photo wearing his orange jail jumpsuit.
As the appeals court noted, the state would never force a defendant to appear before a jury in jail clothing. To do so would undermine the presumption of innocence. The prosecution’s use of the booking photograph had the same effect.
According to the American Bar Association, closings arguments should focus on the facts presented at trial, reasonable inferences drawn from those facts, and accurate legal principles.
Lawyers are “public citizens having a special responsibility for the quality of justice,” according to the ABA Model Rules of Professional Conduct. Lawyers, especially prosecutors, who infect the decision-making process with factors outside the evidence and law, are not only risking the scorn of the court, but the wrath of the bar.
At times, during the modern era of criminal jurisprudence, courts have had to play catch-up with technology. For example, the Supreme Court put limitations on the use of thermal imaging surveillance equipment used to detect drug manufacturing inside homes and earlier this year, the Supreme Court ruled that police need a search warrant to access information on a cellphone.
PowerPoint presentations that attempt to convey on a screen in front of a jury what a lawyer could not convey in person, will no doubt soon get the attention of policymakers across the country.Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, “The Executioner’s Toll, 2010,” was released by McFarland Publishing. You can reach him at mattmangino.com and follow him on Twitter at @MatthewTMangino.
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Thursday, January 1, 2015

In one of his final acts as governor of the state of Maryland, Martin O'Malley has commuted the sentences of four death row inmates to life without parole, reported The Huffington Post.
The likely 2016 Democratic presidential candidate helped shepherd in the abolition of the death penalty in his state in 2013, arguing that it wasn't a deterrent for criminals, could end up being applied to innocent people, and was far more costly to the state than other punishments. But the change left in effect sentences that had already been issued, meaning that four people in Maryland convicted of murder remained on death row.
On Wednesday morning, O'Malley changed that, echoing an argument from the state's attorney general that it might be illegal for the state to go forward with the death penalty sentences now that the law has been changed. O'Malley said in a statement that he spoke with the family members of the victims of the murderers prior to deciding to commute their sentences.
To read more CLICK HERE

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.